An important if somewhat technical Arizona voucher case was up for oral argument last week and the below is mostly a post I had in reply to Dahlia Lithwick's color commentary. Of interest is the Obama Administration getting involved -- which is somewhat curious in a state case of this nature though it is an issue of national significance that touches upon a whole Cabinet department and all -- furthering the restrictive standing policy of the Supreme Court in this and other areas.
Reference was made to the tax payer standing case HEIN v. FREEDOM FROM RELIGION FOUNDATION and the suggestion was made that it basically gutted an earlier ruling. I'm not so sure. The ruling noted that the funding at issue -- executive spending -- did not arise from an appropriation that "specifically authorize the use of federal funds" for alleged illegitimate religious purposes. I agree with the dissent that this shouldn't have mattered and it can cover a lot of ground. I do find those who use such things to say the Establishment Clause is "toast" tediously exaggerated. As I noted more than once, and more than once was ignored, we have a death penalty and so forth, but our Eighth Amendment is not "toast," even though I guess exaggeration man here might think so.
The law at issue here, however, sounds pretty 'specific" to me though the case might be used to find yet another loophole for religious funding, which someone who would respect Madison's beliefs (not a three pence! ... the reference should be read to link up to a reference in the article that justices appear now to see Madison as a "tenth justice" ... originalism isn't my thing, but he's pretty right on this issue) on the matter (avoiding funding of religious teachers was a key matter in a religious freedom law he helped Jefferson pass in Virginia, a law so important that Jefferson had it referenced on his tombstone). A taste of Madison's opinion on the matter:
One concern is of equality -- certain sects and believers do not believe in such a measure or will not have the people to form schools. Thus, the measure will favor certain sects over others, a matter of religious belief not only divisive but not evenhanded. Such is often the problem, even with what appears to be benign mixture. Will a prayer or religious message be neutral enough or too neutral? Will only certain religions get a state authorized display or "day of prayer"?*We, the subscribers, citizens of the said Commonwealth, having taken into serious consideration, a Bill printed by order of the last Session of General Assembly, entitled "A Bill establishing a provision for Teachers of the Christian Religion," and conceiving that the same, if finally armed with the sanctions of a law, will be a dangerous abuse of power, are bound as faithful members of a free State, to remonstrate against it, and to declare the reasons by which we are determined. We remonstrate against the said Bill,
A resident of Arizona ["Tax Paying Arizonian"] argues that this is an end around to a state prohibition and deserves to be seen as the problematic 1A issue that it appears to be. Voucher programs have split some people who are usually allies but even then it is important for the individual parent to have control, not some third party like here. The opposition during oral argument underlined the point, arguing that in practice the parent doesn't have direct control, a third party which often only accepts certain religious believers (as religious schools have every right to do if not restrained by public funds; this is not just about secular ends here) in the process. Even some fans of vouchers might feel this is a bit hinky. The reference of Kennedy to use of such funds to support discriminatory schools is telling since there too what couldn't be done directly was tried more creatively. Namely in the 1950s and such. Madison et. al. didn't/don't find that appealing; if anything, it can be more divisive mixing.
This if the Supreme Court doesn't play it's game of avoidance, some members wanting them to do so because they fear the result otherwise. But, as to standing, since money to schools is involved, I would think that other schools could have standing to challenge the measure. Not taxpayers alone, but the competition, so to speak. The stem cell case in the news recently comes to mind; standing was found by the appellate court because some group's funding was threatened.
In Hein, Justice Kennedy concurred separately to suggest that he would not avoid all taxpayer standing and also ended thusly:
It must be remembered that, even where parties have no standing to sue, members of the Legislative and Executive Branches are not excused from making constitutional determinations in the regular course of their duties. Government officials must make a conscious decision to obey the Constitution whether or not their acts can be challenged in a court of law and then must conform their actions to these principled determinations.That restraint of limited value in various ways, standing in the courts still is valuable here.
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* A state just passed a measure banning the use of "Sharia law" in the courts. What will happen when some dispute involving a Islamic house of worship or marriage contract that references Sharia is some way arises? Will it similarly not use Jewish law or Catholic law in comparable situations? The measure appears to be a blatant violation of the 1A, a sectarian abridgment of free exercise that also has establishment problems. And, any number of litigants can be imagined other than taxpayers.